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TAS/ADA Existing Buildings and Facilities
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The 2012 Texas Accessibility Standards defines and scopes "additions" and "alterations" separately. While they are somewhat obvious, for clarity we will start with the 2012 TAS definitions of each term, as well as the term "Primary Function".
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106.5.3 Addition. An expansion, extension, or increase in the gross floor area or height of a building or facility.
106.5.5 Alteration. A change to a building or facility that affects or could affect the usability of the building or facility or portion thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
106.5.45 Primary Function. A major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a primary function. Alterations that affect the usability of or access to an area containing a primary function include, but are not limited to:
(i) Remodeling merchandise display areas or employee work areas in a department store;
(ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank;
(iii) Redesigning the assembly line area of a factory; or
(iv) Installing a computer center in an accounting firm.
For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.
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The scoping requirements set forth in 202 state that each "addition" must meet the requirements for new construction. It also states that each addition that affects or could affect the usability of or access to an area containing a primary function shall comply with 202.4. We will discuss this a little further down.
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202.2 Additions. Each addition to an existing building or facility shall comply with the requirements for new construction. Each addition that affects or could affect the usability of or access to an area containing a primary function shall comply with 202.4.
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OK. So this is pretty straight forward. Additions must meet the requirements for new construction. And in some cases these additions could trigger compliance in other areas if the addition affects the usablitly or access to an area containing a primary function.
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Chapter 2 states that where existing elements, spaces, or common use areas are altered, each altered element, space, or common use area shall comply with the applicable requirements of Chapter 2.
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202.3 Alterations. Where existing elements, spaces, or common use areas are altered, each altered element, space, or common use area shall comply with the applicable requirements of Chapter 2.
EXCEPTIONS:
1. Unless required by 202.4, where elements or spaces are altered and the circulation path to the altered element or space is not altered, an accessible route shall not be required.
2. In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible.For purposes of ensuring compliance with Texas Government Code, Chapter 469, all determinations of technical infeasibility and maximum extent feasible are made by the Department in accordance with the variance procedures contained in Chapter 68, Texas Administrative Code.
3. Residential dwelling units not required to be accessible in compliance with a standard issued pursuant to Texas Government Code, Chapter 469, shall not be required to comply with 202.3.
Advisory 202.3 Alterations. Although covered entities are permitted to limit the scope of an alteration to individual elements, the alteration of multiple elements within a room or space may provide a cost-effective opportunity to make the entire room or space accessible. Any elements or spaces of the building or facility that are required to comply with these requirements must be made accessible within the scope of the alteration, to the maximum extent feasible. If providing accessibility in compliance with these requirements for people with one type of disability (e.g., people who use wheelchairs) is not feasible, accessibility must still be provided in compliance with the requirements for people with other types of disabilities (e.g., people who have hearing impairments or who have vision impairments) to the extent that such accessibility is feasible.
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I should mention that all through the TAS you will find specific exceptions for alterations. Areas range from thresholds, maximum slope allowances, entrances and dining areas.
Remember from the earlier definition that normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
It is not uncommon for me to receive a project registration for an alteration that is purely mechanical. The reason the job has been registered with TDLR is because the city would not issue a permit without an EAB number because the project was over $50,000.
My advice for these projects would be to first reach out to the city plan review department and point them to 106.5.5 in the TAS before registering for an EAB number. If that doesn't work, you will need to to register and submit plans and a proof of submission form to a RAS. The RAS should confirm that it is not subject to the act and send the folder back to TDLR with a Project Status Update form letting them know that the project is not subject to the act. This will in turn close out the project. There is no reason to go through with, and pay for, a plan review and inspection since there is nothing to review or inspect.
The first exception in 202.3 states that unless required by 202.4, where elements or spaces are altered and the circulation path to the altered element or space is not altered, an accessible route shall not be required.
202.4 is the section that addresses Primary Function Areas. Since we already went over the definition of a "Primary Function Area" in the TAS, let's review what 202.4 says about these areas.
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202.4 Alterations Affecting Primary Function Areas. In addition to the requirements of 202.3, an alteration that affects or could affect the usability of or access to an area containing a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area, including the parking areas, rest rooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope.For purposes of ensuring compliance with requirements of Texas Government Code, Chapter 469, all determinations of maximum extent feasible and disproportionality are made by the Department in accordance with the variance procedures contained in Chapter 68, Texas Administrative Code. If elements of a path of travel at a subject building or facility that have been previously constructed or altered in accordance with the April 1, 1994 Texas Accessibility Standards (TAS) they will enjoy safe harbor and are not required to be retrofitted to reflect the incremental changes in the 2012 TAS solely because of an alteration to a primary function area served by that path of travel. Those elements would be subject to compliance with the 2012 TAS only when the elements of a path of travel are being altered.
EXCEPTIONS:
1. Residential dwelling units shall not be required to comply with 202.4.
2. If a tenant is making alterations as defined in 106.5.5 that would trigger the requirements of this section, those alterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon the landlord with respect to areas of the facility under the landlord´s authority, if those areas are not otherwise being altered.
Advisory 202.4 Alterations Affecting Primary Function Areas. An area of a building or facility containing a major activity for which the building or facility is intended is a primary function area. There can be multiple areas containing a primary function in a single building. Primary function areas are not limited to public use areas. For example, both a bank lobby and the bank's employee areas such as the teller areas and walk-in safe are primary function areas. Also, mixed use facilities may include numerous primary function areas for each use. Areas containing a primary function do not include: mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms. Additional information about primary function areas is provided in 106.5.45.
Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area. When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs. In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order:
(i) An accessible entrance;
(ii) An accessible route to the altered area;
(iii) At least one accessible restroom for each sex or a single unisex restroom;
(iv) Accessible telephones; (v) Accessible drinking fountains; and
(vi) When possible, additional accessible elements such as parking, storage, and alarms.
Additional information about disproportionality and path of travel and is provided in 106.5.25 and 106.5.41.
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To summarize, if an alteration is made to a primary function area, path of travel requirements come into play. This would mean an accessible route would be required to parking areas, rest rooms, telephones, and drinking fountains serving the altered area.
Keep in mind that "to the maximum extent feasible" is something that has to be determined by TDLR through a variance application, and is not up to the architect or RAS to determine.
Exception 2 makes clear that if a tenant is making alterations, those alterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon the landlord.
So if a tenant is altering a lease space in a shopping center, the scope of the review and inspection is limited to the tenant space.
One final thing to keep in mind is that an alteration may not decrease the accessibility of a building or facility below the requirements for new construction.
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202.3.1 Prohibited Reduction in Access. An alteration that decreases or has the effect of decreasing the accessibility of a building or facility below the requirements for new construction at the time of the alteration is prohibited.
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I realize this newsletter was a little longer than normal, so thanks for staying with me to the end.
If you have questions or concerns about this, or another area of accessibility, please feel free to reach out to me. I am always happy to help!
Best Regards,
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